Text Messages on Private Devices Subject to Washington Public Records Act

On August 27, 2015, the Washington Supreme Court affirmed lower courts in holding “that text messages sent and received by a public employee in the employee's official capacity are public records of the employer, even if the employee uses a private cell phone.” Nissen v. Pierce County

The case arose when a sheriff’s detective sent requests to Pierce County for records related to the County Prosecutor. One request was for cellular telephone records for the Prosecutor’s personal phone. There was no dispute that the Prosecutor personally bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.

The Court’s unanimous decision required the Prosecutor to obtain a transcript of the content of all the text messages at issue, review them, and produce any that are public records to the County. “The County must then review those messages just as it would any other public record-and apply any applicable exemptions, redact information if necessary, and produce the records and any exemption log.”

The Court provided public officials a method to submit an affidavit to separate personal from public messages:

“Where an employee withholds personal records from the employer, he or she must submit an affidavit with facts sufficient to show the information is not a "public record" under the PRA. So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA. When done in good faith, this procedure allows an agency to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.”

The Nissen case reemphasizes the need for public officer and employee vigilance in managing information on personal communication devices. While convenient, the use of private devices for official business creates substantial expense to a public agency in responding to requests for public records.

Washington Court Holds Ballots Secret and Not Subject to Public Disclosure

The Washington Constitution, Article VI, Section 6 states: “The Legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot.” This provision was central to a Washington Court of Appeals decision on July 13, 2015, rejecting a public records act request for “copies of electronic or digital image files” of ballots. White v. Skagit County and Island County, ___ Wn. App. ___, No. 72028-7 (Jul. 13, 2015).

Following the 2013 Washington general election, Timothy White sent public records requests for all ballots to all counties in the state. The counties denied the requests and White sued. The Washington Public Records Act does not expressly exempt ballots from disclosure. It does, however, include an “other statute” provision that incorporates exemptions to disclosure that are based on laws outside of the Act. The court applied the “other statute” exemption in light of the comprehensive statutory scheme restricting access to ballots. The court concluded that the exemption “is necessary to protect the ‘vital government function’ of secret ballot elections.” Two weeks earlier, a different division of the Court of Appeals reached the same conclusion in White v. Clark County, ___ Wn. App. ___, No. 46081-5-2 (June 30, 2015).

Of further note, the court rejected White’s claim that Skagit County should be penalized for failing to respond to his request for “the original metadata and Properties of the electronic or digital files requested.” The court concluded that it was not unreasonable for the county to ask for an explanation of the electronic files requested. The Court of Appeals agreed with the trial court that “White’s failure to respond to the request for clarification excused the County from trying to explain more specifically why the ‘metadata and Properties’ were exempt.”

No Privacy Interest In Employee's Identity Connected To Existence Of Investigation When Allegations Are Not Described

In Predisik v. Spokane School District No. 81, the Washington Supreme Court holds by a 5 justice majority that disclosure of employer investigation records that reveal an employee’s identity do not implicate employee privacy rights under the Public Records Act (PRA) when the records do not describe the allegations being investigated.  The court therefore reversed the Court of Appeals below, ordered disclosure of the records without redaction, and denied the employees’ requests for injunctive relief under the PRA. 

Two media outlets submitted public records requests to Spokane Public Schools for documents concerning employees on administrative leave.  In response, the District produced three records: an “administrative leave letter” placing an employee on leave and banning the employee from district property and from talking with students about the matter; and two spreadsheets that documented the amount of leave pay accumulated by the employee named in the leave letter and a second employee also on leave.  None of the documents detailed the allegations’ contents. 

Under the employee personal information exemption, only an employee’s personal information that implicates privacy interests (i.e., matters concerning the private life) may be withheld under the PRA, and only when the information’s release would violate the employee’s right to privacy.  Here, the Court held that the existence of a public employer’s investigation is not a “private” matter, but merely an administrative process arising from the employee’s public employment.  The existence of the investigation “is not akin to a family quarrel or a humiliating illness, nor does it touch on the employee’s life at home.”  The investigation itself is therefore not a “closely held private matter that gives rise to a privacy right under the PRA.”  Whether the allegations are later substantiated, or not, “makes no difference … because the records do not describe them.” 

The 4 dissenting justices would have held that employees have a privacy interest in their identities when connected to the existence of an employer investigation into not yet substantiated allegations of misconduct, and that disclosure would violate their rights to privacy.  The employees’ identities remained a private matter because unsubstantiated allegations do not bear on employee performance.  The employees’ identities should have therefore been redacted from the records prior to disclosure. 
 

Washington Supreme Court Grants Petitions to Review Nissen v. Pierce County

On March 3, 2015, the Washington Supreme Court granted two petitions to review Nissen v. Pierce County, 183 Wn. App. 581, 333 P.3d 577 (2014).  In Nissen, the Washington Court of Appeals applied the Washington Public Records Act and held that text messages sent and received from a government employee’s (the elected prosecuting attorney’s) private cell phone are public records if they relate to government business, as are portions of call logs that track a government employee’s private, non-agency cell phone.  Read more about the decision here.  Pierce County and the Pierce County Prosecutor separately sought review of the appellate court ruling.  The Supreme Court granted both petitions for review.

Hillary Clinton Defends Use of Personal E-mail

On March 2, 2015, The New York Times reported that Hilary Clinton, during her tenure as Secretary of State, may have violated federal regulations by using her personal e-mail to conduct government business. The report says that Clinton aides took no measures to preserve the personal emails on the department servers, which is required by the Federal Records Act.

Read more at: http://www.king5.com/story/news/politics/2015/03/03/hillary-clinton-emails/24299925/
 

City Investigation of Law Enforcement Whistleblower Allegations Subject to Disclosure; No Redaction of Witness Identification

In early 2011, City of Fife police officers submitted a whistleblower complaint to the City Manager.  The complaint covered a range of topics including discrimination, misappropriation of public funds and improper workplace relationships.  The City retained an outside entity to investigate the allegations.  The City determined the investigation was thorough and the allegations were either not sustained or unfounded.  One of the complaining officers submitted a public records request for the report, audio recordings and transcripts of interviews, and other records relating to the whistleblower complaint and investigation.  The City began producing installments in May 2012, but redacted names and identifying information of witnesses, the accused officers, and complaining parties.  The City also commenced an action for declaratory and injunctive relief regarding its obligations to produce records. 

On February 24, 2015, the Washington State Court of Appeals determined that while the City’s records were “specific investigative records,” and might qualify for a public records exemption, that was only a part of the test.  City of Fife v. Hicks, (Division II, No. 45450-5).  The Court held that the City was unable to demonstrate non-disclosure was essential to effective law enforcement.  The Court pointed to earlier precedent that expressly rejected the concept that a “generalized fear that disclosure of witness names will chill cooperation within investigations,” citing Sargent v. Seattle Police Department, 179 Wn.2d 376, 395 (2013) (generalized fear, alone, insufficient to justify non-disclosure). In the Fife case, the Court also rejected the City’s claim that disclosure of witnesses would violate a witness’s right to privacy.  This was particularly the case here where dealing with public employees whose conduct is a matter of greater interest to the public.  Additionally, the City could point to no foundation that the requester’s own name could be redacted from a record requested by that person.  While this case may not present substantially new information for agencies complying with the Washington Public Records Act, it does emphasize the need to manage investigations in a manner attentive to future Public Records Act responsibilities.

Court Of Appeals Reverses Large Public Records Act Penalty Imposed On University Of Washington

In Bichindaritz v. University of Washington, Division One of the Court of Appeals reversed a $723,290.50 penalty and $102,958.03 attorney fee award for violations of the Public Records Act by the University of Washington.  The trial court had concluded that the University’s production of documents to the requestor, a former employee who had sued the University, was not in good faith and that the University waited too long to produce records it had already assembled but had not yet reviewed.  The University appealed.

In particular, the University challenged the trial court’s conclusion that as soon as the University had assembled the responsive documents, they were ready to be produced to the requestor.  The Court of Appeals agreed with the University, explaining that the Public Records Act requires that responses to records requests be made “promptly,” but also expressly recognizes that an agency may need additional time to determine whether any part of the information requested is exempt.  See RCW 42.56.520.  As the court summarized:

By the time Bichindaritz closed her 2009 request in February 2011, the University had assembled about 25,000 pages but had reviewed only about half of them for exemptions.  It was unreasonable to expect the University to produce the remaining 12,000 pages the same day Bichindaritz reopened her request simply because it had already assembled those documents.

Opinion at 7 (emphasis in original).

The Court of Appeals also rejected the requestor’s argument that the University’s violation could be sustained on the basis that the University “repeatedly missed production deadlines.”  The court observed that the Public Records Act demands only that an agency provide reasonable estimates for production—not necessarily that an agency comply with its own self-imposed deadlines.  “The question is whether the agency ‘was acting diligently in responding to the request in a reasonable and thorough manner.’”  Opinion at 9 (citing the recent decision in Hobbs v. State).  Here, the requestor did not argue – and the record did not indicate – that the University was less than diligent in completing its review and redaction of the final records for production.  Concluding that the University had not violated the Public Records Act, the Court of Appeals reversed the trial court’s imposition of penalties and attorney fees.
 

Exemption Log Sufficient to Trigger One Year Statute of Limitations for Washington PRA Claim

Under Washington’s Public Record Act, an action challenging an agency’s refusal of records must be filed within one year of the agency’s claim of exemption. RCW 42.56.550(6). The Supreme Court holds that an insufficient exemption log will not trigger the running of the statute of limitations. 

Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009  A “log need not be elaborate but should allow a requestor to make a threshold determination of whether the agency has properly invoked the exemption.”  WAC 44-14-04004(4)(b)(ii).  ). See also December 15, 2014 posting entitled "Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency's Violation Of PRA's 'Brief Explanation' Requirement." 

On February 9, 2015, the Washington Court of Appeals considered a PRA claim filed against the Washington Criminal Justice Training Commission (WSCJTC).  John F. Klinkert  v.  Wa State Crm Justice Training Commission. WSCJTC responded to a PRA request with a one page log for two records. 

One of the records was a 713-page investigative file.  WSCJTC claimed the entire file exempt under RCW 43.101.400(1) as records “that may be used by WSCJTC in an investigation of [a deputy sheriff’s] certification.” After the WSCJTC responded to the PRA request, there were further exchanges between Klinkert and WSCJTC, but no change in position. Later, Klinkert filed his action more than one year after the initial rejection of his request. The Court upheld the application of the one year statute of limitation, finding that there was sufficient information in the WSCJTC exemption log for Klinkert to understand the basis for the claim of exemption. His claim was time barred by the statute and properly dismissed.

Seattle Times Reports on Washington Liquor Control Board Settlement Payment

The Seattle Times reported on the Washington Liquor Control Board's payment to settle a claim under the Open Public Meeting's Act. Read the full article titled "Liquor Board pays $192K to make public records gadfly go away" here.

Seattle City Council Briefing on PRA Compliance

As part of its 2014 Statement of Legislative Intent (SLI), the Seattle City Council requested that the City Clerk, the City Attorney’s Office and various executive departments form a PDR [Public Disclosure request] Task Force to: (i) identify shortcomings in the City’s current approach to fulfilling PDRs; and (ii) make recommendations regarding appropriate City-wide policies. See SLI 13-2-A-1. The Task Force briefing outline for the City Council (January 5, 2015)  is available here.

Included in the preliminary recommendations are:

  1. Create a Citywide Public Records Act (CPRA) program to centrally manage the public disclosure function for complex requests.
  2. Strengthen support for Public Disclosure Officers.
  3. Develop centralized PDR Portal & tracking system that allows public access.
  4. Expand the PRA training curriculum.
  5. Measure customer satisfaction.